amce studios GmbH
Rhine road 34
64283 Darmstadt
Germany
hereafter: Provider
Scope and subject matter
These General Terms and Conditions (GTC) apply to all contracts concluded between the Provider and the Customer. Terms and conditions of the customer that deviate from these GTC do not apply unless the provider and the customer have expressly agreed to this. The provider does not conclude contracts with consumers or private individuals. His offer is directed exclusively to entrepreneurs.
The provider's range of services includes, among other things, the creation and development of websites. The services agreed upon in detail result from the contract concluded individually between the provider and the customer.
The term "website" in these GTC includes all forms of websites, such as online stores. The Provider is entitled to subcontract the necessary services in its own name and for its own account to subcontractors, who in turn may also use subcontractors. The Provider shall remain the sole contractual partner of the Customer in this respect. The Provider shall not use subcontractors if it is evident to the Provider that the use of such subcontractors would be contrary to the legitimate interests of the Customer.
If the customer wishes to make use of the provider's services, he first submits an inquiry to the provider with as precise a description as possible of the services he requires. This request represents an invitation to submit an offer by the provider. The provider will check to the best of his knowledge and belief whether the wishes of the customer described in the inquiry are complete, clear, feasible, free of contradictions and suitable for the desired form of implementation and will prepare an offer on this basis. However, the provider will not carry out a legal review of the customer's wishes. Only when the customer accepts the offer of the provider, a contract between the provider and the customer is concluded.
If the offer of the provider contains drafts, samples or creative proposals, but no contract is concluded, the customer has no claim to the surrender of the drafts, samples, creative proposals or, if applicable, the associated source codes, copies, etc.. In this case, the Customer shall delete, destroy and/or return to the Provider all copies.
Cooperation obligations of the customer
If the conclusion of a contract on commissioned processing (CPC) is required for individual services pursuant to Art. 28 DSGVO, both contracting parties undertake to conclude such a contract prior to the commencement of the provision of the services in question. The AV contract shall in principle be provided by the Provider. The Customer is obliged to provide the information, data (e.g. for the imprint), works (texts, images, layouts, graphics, etc.) and accesses to be provided by him for the purpose of fulfilling the order in a complete, timely and correct manner. The customer is responsible for the procurement of the material for the design of the web pages and other works (e.g. graphics, texts), unless the provider and the customer have expressly agreed otherwise. If the Customer does not provide the material or does not provide it in a timely manner and does not make any further specifications, the Provider shall be entitled, at its own discretion, to use image material from common providers (e.g. stock photo providers) or to provide the corresponding parts of the website with a placeholder, in compliance with the copyright labeling requirements. If the customer provides (necessary) cooperation or additional work late, the provider is not liable for delays and delays in the implementation of projects resulting from this.
If the customer provides the provider with texts, images or other content as part of the order, the customer is responsible for ensuring that this content does not infringe the rights of third parties (e.g. copyrights). The Provider is not permitted by law to provide legal advice services to the Customer. In particular, the Provider is not obligated and not authorized to check the Customer's business model and/or the works (texts, images, layouts, graphics, etc.) created or acquired by the Customer itself for their compatibility with applicable law and, in particular, will not conduct any trademark searches or other property right collision checks with respect to the works provided by the Customer. If the customer gives specific instructions regarding the work to be produced, he shall be liable for this himself.
If the Customer fails to fulfill its obligations under this clause, the Provider may charge the Customer for the time spent on this (e.g. costs for stock photos and time spent searching for them).
Acceptance
The Provider shall be entitled to demand acceptance of work performances in writing. The Customer shall only owe the written acceptance if the Provider requests it to do so. The acceptance provisions of the German Civil Code shall otherwise remain unaffected.
The Provider and the Customer shall set the acceptance period within the meaning of Section 640 (2) sentence 1 of the German Civil Code (BGB) at 2 weeks from notification of completion of the Work, unless a longer acceptance period is required in individual cases due to special circumstances, in which case the Provider shall notify the Customer separately. If the Customer does not comment within the acceptance period or does not refuse acceptance due to a defect, the Work shall be deemed accepted.
Remuneration
The Provider and the Customer shall conclude an individual contractual agreement on the remuneration for the order, which shall generally be based on the offer.
The Provider is entitled to adjust its prices regularly to the extent that its own costs for providing the service increase. Customers with existing contracts shall be notified of the price adjustment by e-mail no later than one month before the change takes effect. If the customer does not object within the period set in the notification of change, this shall be deemed to be consent. The notification of the intended price adjustment will refer to the deadline and the consequences of the objection or its absence. If the customer objects to the price adjustment, his contract shall be terminated for cause as of the effective date of the price adjustment.
Contractual term for continuing obligations
Subject to deviating provisions within and outside of these GTC, continuing obligations (e.g. maintenance contracts) have a minimum term of 12 months. The period of notice is 3 months. If the contract is not terminated in due time at the end of the term, it shall be automatically extended by a further 12 months.
The right to extraordinary termination for good cause remains unaffected.
Warranty for defects, liability and indemnification
An insignificant defect does not justify any claims for defects. The choice of the type of supplementary performance lies with the supplier. The limitation period for defects and other claims shall be one (1) year; this shortening of the limitation period shall not apply to claims resulting from intent, gross negligence or injury to life, limb or health by the Provider. The limitation period shall not begin again if a replacement delivery is made within the scope of liability for defects. Otherwise, the statutory warranty for defects shall remain unaffected.
The liability of the provider for all damages is limited as follows: In the event of a slightly negligent breach of a material contractual obligation ("cardinal obligation"), the Provider's liability shall in each case be limited to the amount of the damage foreseeable at the time of conclusion of the contract and typical for the contract. Cardinal obligations are obligations the fulfillment of which is essential for the proper performance of the contract and on the fulfillment of which a party may regularly rely. This limitation of liability shall not apply in the event of gross negligence or intentional acts or in the event of mandatory statutory liability, in particular in the event of the assumption of a guarantee or in the event of culpable injury to life, limb or health. The above liability provision shall also apply with regard to the liability of the Provider for its vicarious agents and legal representatives.
The Customer shall indemnify the Provider against any claims of third parties asserted against the Provider due to violations of these GTC or applicable law by the Customer.
Website creation
The subject of contracts concluded between the Provider and the Customer for the creation of websites is basically the development of new websites or the expansion of existing websites (e.g. integration of new interfaces) in compliance with the technical and / or design specifications of the Customer. Contracts concluded between the Provider and the Customer for the creation of websites are contracts for work and services within the meaning of §§ 631 ff. BGB.
Unless otherwise agreed by the Provider and the Customer, the created web pages are optimized for mobile devices.
Unless otherwise agreed, the created web pages are optimized for all common browsers in their current versions (in each case the last two versions of the browser).
The testing or procurement of rights, the procurement of tools (e.g. statistics) or certificates (e.g. SSL / TLS) or the provision of source codes, development, application or other additional documentation shall only be provided by the Provider if this has been expressly agreed in the individual contract.
After completion of the website, the provider will ask the customer to accept the website.
If the customer does not use hosting services from the provider for the new website, but from third-party providers, the provider assumes no responsibility for the respective servers and their configuration, the data lines and / or the accessibility of the website.
Unless the Provider and the Customer have agreed on additional maintenance and care services, the Customer alone shall be responsible for the technical maintenance and up-to-dateness of the Website after acceptance. The Provider shall not be liable to the Customer for any security vulnerabilities exploited by third parties for illegal purposes (hacking) through the use of outdated software.
Creation of the imprint and privacy policy with generators
If the provider and the customer have agreed, the provider creates the privacy policy and the imprint for the customer's website. For this purpose, the provider uses generators. The provider is only responsible for the creation of the texts with the generators; the customer is responsible for the legal and content review.
The customer is obliged to provide the provider with all necessary information for the creation in a timely, correct and complete manner. The customer has to inform himself and the provider independently about special information obligations within the scope of the imprint (e.g. professional liability insurance, professions subject to licensing, etc.) and the privacy policy. In this context, it is once again pointed out that the provider is not permitted by law to provide legal advice to the customer.
The customer must notify the provider independently and without delay of any changes affecting the information in the imprint or the privacy policy.
The customer must separately order an update of the imprint or the privacy policy after completion and acceptance of the website from the provider, unless otherwise agreed in the individual contract.
Webhosting (Resell)
The Provider and the Customer may agree on the provision of hosting services, in particular as an additional option within the scope of website creation. The specific scope of services (storage space, certificates, etc.) is the subject of individual contractual agreements between the parties. The provider is entitled to use services of third parties in any form in connection with the execution of hosting services.
Unless the Provider and the Customer have agreed otherwise, the Provider shall assume the administration and management of the data in the event of an assignment as hoster. In principle, the Customer shall not be granted access to the administration backend of the hosting system.
The availability of the servers used by the provider for the purpose of hosting is at least 99% on an annual average. Excluded from this are those times during which the servers are not accessible due to events beyond the Provider's control (force majeure, actions of third parties, technical problems, etc.).
Unless otherwise agreed between the Provider and the Customer, the Customer shall not be entitled to the assignment of a fixed IP address for its Internet presence. Technical or legal changes are possible at any time and remain reserved.
The customer is obligated not to disclose his passwords and other access data - insofar as such were provided to him by the provider - to third parties and to change them regularly. The customer is responsible for any misuse by third parties, insofar as he is responsible for this.
The customer is obligated to create regular backup copies of its hosted data. If the customer is not in a position to do so, he shall commission the provider or other professionally suitable third parties with the backup. The Customer shall be liable for any data loss that occurs due to a lack of data backup.
Domain registration
The Provider and the Customer may agree on the provision of domain registration services, in particular as an additional option within the scope of website creation. The specific scope of services is subject to individual contractual agreements between the parties.
The contractual relationship required for the registration of the respective domain shall be established directly between the customer and the respective domain issuing authority or the respective registrar. In the relationship between the customer and the registry, the provider merely acts as an intermediary without having any influence on the allocation of the domain.
The customer bears the sole responsibility for ensuring that the domain requested by him does not violate any third-party rights. A review of the domain by the provider is not owed.
For the registration of domains, the respective terms and conditions of the individual registries shall apply in addition. The Provider shall inform the Customer of any special features in the event of an intended registration.
Website maintenance and support
After completion of a website and / or individual parts thereof, the provider may offer the customer maintenance and care services related to the website. The provider can also offer the maintenance of third-party websites. However, neither the provider is obligated to make such an offer, nor does the customer have to make use of the further service offers of the provider. Corresponding agreements are exclusively subject to individual agreements.
The object of the maintenance agreements is the elimination of malfunctions as well as the event-related updating of the website for common web browsers in its respective current version by the Provider. Further details, such as regular maintenance, may be agreed upon in individual contracts.
The prerequisite for maintenance is that the content to be maintained is compatible with the provider's systems. Compatibility may be impaired in particular by outdated components of the content to be maintained or by unauthorized changes on the part of the Customer. If compatibility is not guaranteed, the Customer must establish it independently (e.g. by means of appropriate updates) or separately commission the Provider to establish compatibility.
The Provider shall not be liable for malfunctions and incompatibilities caused by unauthorized changes made by the Customer or based on other errors that are not within the Provider's sphere of responsibility; the provisions under "Liability and Indemnification" shall remain unaffected.
The maintenance only includes the technical, but not the content-related updating of the website, in particular not the updating of the imprint or the privacy policy, unless the Provider and the Customer have expressly agreed on this.
SEO Marketing
If the Provider and the Customer agree on services in the field of SEO marketing, the Provider shall, within the scope of the provision of services, exclusively owe the implementation of measures which, according to the Provider's own experience, can positively influence the search engine ranking or which are expressly requested by the Customer. This is a service within the meaning of §§ 611 et seq. BGB. A specific result (e.g. a specific ranking in the Google hit list) is not owed within the scope of the SEO services, unless the Provider and the Customer have expressly agreed on this.
SEA campaigns
If the Provider and the Customer agree on services in the area of SEA campaigns, the Provider shall, within the scope of the provision of services, exclusively owe the submission of proposals regarding keywords with advertising effect and, after approval by the Customer, the implementation of the measure (placement of advertisements). These are services within the meaning of §§ 611 ff. BGB. A specific result (e.g. sales figures) is not owed within the scope of SEA services, unless the provider and the customer have expressly agreed on this.
In addition to the claim to remuneration for the service, the Provider shall have a claim against the Customer for reimbursement of expenses with regard to the advertisements subject to a charge.
The provider is not obliged to check the legality of keywords. The provider submits suggestions to the customer regarding the booking of keywords. The legal review, in particular with regard to the trademark rights of third parties, and release of the keywords is the responsibility of the customer before the implementation of the campaign.
Social Media Marketing
If the Provider and the Customer agree on technical support for the creation and/or maintenance of social media presences, the Provider shall owe exclusively the technical creation of the social media pages and/or the technical input of the content to be provided by the Customer.
If the Provider and the Customer have expressly agreed, the Provider shall also create social media advertisements for the Customer; these are advertisements that are created specifically via the system provided by the relevant social media platform for this purpose. The Provider shall only owe the creation of the advertisements based on the individual Customer's request. Specific results (e.g., sales figures), on the other hand, are not owed.
The selection of content (images, texts, videos, imprints, etc.) is the sole responsibility of the customer. The provider will not check this content for its content or legal accuracy. In this respect, it is expressly pointed out that the provider is not permitted to provide legal advice to the customer. Should he nevertheless determine in individual cases that the content provided by the customer violates applicable law, he may refuse to post such content.
In addition to the creation of the social media pages, posting in the name and under the name of the customer (so-called ghost posting) by the provider can also be agreed. The provider is free in the content design, provided that there are no specifications of the customer. There is no obligation to respond to posts by third parties or to monitor them. This is the responsibility of the customer as operator. Service provider in the sense of § 10 TMG is solely the customer. Details are subject to individual contractual agreements.
The Provider is merely the Customer's order processor within the scope of the support of the social media pages.
Content marketing and press releases
If the provider and the customer agree on professional content marketing (copywriting) and / or the creation of press releases, the billing and duration of the assignment shall be based on the specifications of the accepted offer.
The content of the texts is based on the customer's specifications. Once the agreed text has been completed, the provider will send the created texts to the customer for review and approval. A distribution date will be set for press releases after they have been approved, on which date they are to be sent to the media.
Unless otherwise agreed, the customer is entitled to two correction or change loops. Complaints regarding the stylistic design or the integration of new information into the text are generally excluded after the second change loop. If the customer wishes further changes beyond this, he shall bear the additional costs.
If the Provider has been commissioned with the integration of the texts in public media (e.g. online or print media), the Provider shall only publish texts that have been released by the Customer. The Provider shall be liable for errors discovered after release exclusively in accordance with the provisions under the heading "Warranty for Defects, Liability and Indemnification".
Consulting services
If the Provider and the Customer agree on the provision of consulting services, the Provider shall, within the scope of the provision of services, exclusively owe an assessment of the subject matter of the consulting to the best of its knowledge and belief. In particular, no legal advice is owed.
Consulting services are services within the meaning of §§ 611 ff. BGB. A specific result, on the other hand, is only owed within the scope of the service in the form of consulting if the provider and the customer have expressly agreed on this.
Market observation
If the Provider and the Customer agree on services in the area of market observation, the Provider shall, within the scope of the provision of services, owe exclusively the market observation measures that have been agreed with the Customer in advance. This is a service within the meaning of §§ 611 et seq. BGB. A certain result (e.g. sales figures) cannot be guaranteed based on the market observation, unless the provider and the customer have expressly agreed on this. The billing and duration of the assignment are based on the specifications of the accepted offer.
Logo design and conception
The provider takes over the customer's logo design and conception after agreement with the customer. For this purpose, the customer first submits an inquiry to the provider with a description of the logo desired by him that is as precise as possible. This request represents an invitation to submit an offer by the provider. The provider will check the customer's ideas described in the inquiry to the best of his knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), unambiguity, feasibility and freedom from contradiction and will prepare an offer on the basis of the wishes arising from the customer's inquiry. Only through the acceptance of the offer by the customer is a contract concluded between the provider and the customer.
If the customer commissions the provider with the logo design and conception, the provider expressly does not check the admissibility under competition law, trademarks or other property rights or the registrability.
The prerequisite for the Provider's activity is that the Customer provides the Provider with all data required for the implementation of the project (color definition, etc.) in a complete and suitable form prior to the start of the order. If the customer does not fulfill this obligation, the provider can charge the customer for the resulting time expenditure.
Unless the Provider and the Customer have agreed otherwise, the Customer shall be entitled to two correction loops. After these correction loops have been carried out, requests for adjustments and complaints (in particular with regard to the artistic design) will no longer be taken into account. If the Customer wishes to make further changes after the second correction loop, the Provider can create these for the Customer for an additional fee to be agreed.
The drafts presented within the correction loop may not be used, reproduced or passed on to third parties, either in the original or modified, by the customer without the express consent of the provider.
As soon as the agreed object of performance has been completed, the Provider shall request the Customer to accept the work. The logo design or concept will be sent to the customer in a common file format.
Unless otherwise agreed in an individual contract, the Provider may require that a suitable copyright notice be placed in an appropriate location on the works created.
The remuneration for the logo design and conception is the subject of an individual contractual agreement between the parties.
The Provider grants the Customer the rights of use required for the respective purpose. A transfer of the rights of use to third parties requires an individual contractual agreement.
The rights of use shall not pass to the customer until the remuneration has been paid in full.
Video and photography
If the Provider and the Customer agree on the creation of professional videos and photographs, the services agreed in detail shall result from the contract concluded individually between the Provider and the Customer. For this purpose, the customer first submits an inquiry to the provider with a description of the services desired by him that is as precise as possible. This request represents an invitation to submit an offer by the provider. The provider will check the ideas of the customer described in the request to the best of his knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular on the rights of third parties), unambiguity, feasibility and consistency and prepare an offer based on the wishes arising from the customer's request. Only through the acceptance of the offer by the customer is a contract concluded between the provider and the customer.
The specifications of the customer will be taken into account to the best of our knowledge and belief. The Provider and the Customer acknowledge that the creation of videos and photographs is a creative performance that requires a high degree of artistic freedom. The Provider therefore exclusively owes the creation of a work that, according to the Provider's own experience and assessment, corresponds to the Customer's wishes. Complaints regarding the artistic design are excluded in principle.
Unless otherwise agreed, the customer is entitled to two correction loops with regard to the image editing or video editing (e.g. through filters and effects) of the created photographs or videos; however, a new creation of the photographs or videos is excluded. Complaints regarding the artistic design are generally excluded. If the customer wishes further changes, he has to bear the additional costs.
If the customer provides persons for the creation of the videos or the photographs (e.g. his employees or professional models), he is solely responsible for ensuring that the persons concerned have consented to the use of the recordings. In particular, he is responsible for concluding suitable model release agreements and obtaining DSGVO-compliant employee commitments.
As soon as the agreed object of performance has been completed, the Provider shall request the Customer to accept the work.
Unless otherwise agreed in an individual contract, the Provider may require that a suitable copyright notice be placed in an appropriate location on the works created.
Unless otherwise contractually agreed and not otherwise to be expected from the purpose of the contract, the customer shall in principle only receive finished processed recordings for the respective purpose. The customer does not have a claim to the surrender of the raw data or editable files (RAW files or similar).
Print design
The subject of design contracts in the print sector between the Provider and the Customer is generally the development of the Customer's design specifications for print products (e.g. design of banners, post graphics, posters, flyers, vehicle or shop window stickers, textiles or logo designs). Design contracts concluded between the Provider and the Customer are contracts for work and services within the meaning of § 631 et seq. BGB (GERMAN CIVIL CODE). The services agreed upon in detail result from the contract concluded individually between the Provider and the Customer. For this purpose, the customer first submits an inquiry to the provider with a description of the design services desired by him that is as precise as possible. This request represents an invitation to submit an offer by the provider. The Provider shall examine the Customer's ideas described in the inquiry to the best of its knowledge and belief as to completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), unambiguity, feasibility and freedom from contradiction and shall prepare an offer on the basis of the wishes arising from the Customer's inquiry. Only through the acceptance of the offer by the customer is a contract concluded between the provider and the customer.
After the order has been placed, the customer's requirements are discussed in a briefing if necessary and the specifications are specified in more detail. At this point, customer requests can be introduced, provided they are covered by the originally agreed scope of services. Adjustments become part of the original contract if both parties agree in text form. Otherwise, the provider is only obliged to produce the items listed in the contract. Any additional services must be agreed and remunerated separately.
As soon as the agreed object of performance has been completed, the Provider shall request the Customer to accept the work.
Unless otherwise agreed, the customer is entitled to two correction loops. Complaints regarding the artistic design are generally excluded. If the customer wishes further changes beyond this, he shall bear the additional costs.
The prerequisite for the Provider's activity is that the Customer provides the Provider with all data required for the implementation of the project (texts, templates, graphics, etc.) in full and in a suitable form before the start of the order. The Provider shall not be liable to the Customer in any respect for delays and delays in the implementation of projects caused by late (necessary) cooperation or additional work by the Customer. If the Customer does not comply with this obligation, the Provider may charge the Customer for the resulting time expenditure.
Remuneration is the subject of an individual contractual agreement between the parties.
Unless otherwise contractually agreed and not to be expected otherwise from the purpose of the contract, the Provider shall only owe the handover of a print file (e.g. PDF, JPG or PNG) when creating print products in addition to the contractually agreed service items. The customer has no right to the delivery of an editable file (e.g. Word, Indesign).
Granting of rights/own advertising
After full payment of the order by the Customer, the Provider shall grant the Customer a simple right of use to the corresponding work results at the time of their creation. Further rights can be agreed upon in individual contracts.
Unless otherwise agreed, the Customer expressly grants the Provider permission to publicly present the project in an appropriate manner for the purpose of self-promotion (references/portfolio). In particular, the Provider shall be entitled to advertise the business relationship with the Customer and to refer to itself as the author on all advertising materials created and in all advertising measures, without the Customer being entitled to any remuneration for this.
Furthermore, the Provider shall be entitled to place its own name with a link in an appropriate manner in the footer and in the imprint of the website(s) created by the Provider, without the Customer being entitled to any remuneration for this.
Confidentiality
The Provider shall treat as strictly confidential all business transactions coming to its knowledge, in particular print documents, layouts, storyboards, numerical material, drawings, tapes, images, videos, DVDs, CD-ROMs, interactive products and such other documents containing films and/or radio plays and/or other copyrighted materials of the Customer or its affiliates.
The Provider undertakes to impose the duty of confidentiality on all employees and/or third parties (e.g. suppliers, graphic designers, programmers, film producers, sound studios, etc.) who have access to the aforementioned business transactions.
The obligation to maintain secrecy shall apply indefinitely beyond the term of this Agreement.
Other
The contracts concluded between the provider and the customers are subject to the substantive law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
If the Customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in Germany, the parties agree that the place of jurisdiction for all disputes arising from this contractual relationship shall be the registered office of the Provider; exclusive places of jurisdiction shall remain unaffected.
The Provider shall be entitled to amend these GTC for factually justified reasons (e.g. changes in jurisdiction, legal situation, market conditions or business or corporate strategy) and subject to a reasonable period of notice. Customers with existing contracts will be notified of this by e-mail no later than two weeks before the change takes effect. If the customer does not object within the period set in the notification of change, this shall be deemed to be consent. The notification of the intended amendment to these GTC shall refer to the deadline and the consequences of the objection or its absence. If the Customer objects to the amendment, the Provider shall be entitled to terminate the Agreement for cause as of the effective date of the amendment.
Status: 22.09.2022
We place great value on transparency in everything we do. If you have any questions or feedback, we would be happy to hear from you at hello@amce-studios.de.
